OPM Again Presses for Prompt Compliance with Executive Orders

While the provisions generally apply only to contracts in ongoing or future negotiations, OPM said, an agency should review whether they can be applied earlier as a matter of management discretion.

OPM is again pressing agencies quickly adhere to three executive orders signed by President Trump, and that have been under legal challenge, this time with a focus on union-related provisions in those orders. This follows earlier guidance pushing agencies to put into effect the disciplinary-related provisions.

“Agencies should adhere to the now-effective provisions of the EOs in ongoing negotiations and reopen collective bargaining agreements at the soonest possible opportunity in order to conform applicable provisions of collective bargaining agreements (CBAs) with the EOs’ requirements. The soonest possible opportunity will generally be at the conclusion of a current term of a CBA when all relevant provisions of the EOs become operative and enforceable,” OPM said.

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The guidance recounts the provisions that were enjoined by court order at one time but now are in effect, including time limits on negotiating over ground rules and over the subject-matter bargaining, a bar on negotiating over matters that are negotiable at management’s discretion under federal labor law, and limits on what agencies are to agree to in bargaining.

Those include a number of limits on “official time” for employees with union roles, including to generally limit the total to one hour per employee in the bargaining unit per year; allow employees to use it no more than 25 percent of their time at work; bar its use to pursue grievances except on an employee’s own behalf or under other limited circumstances; and generally require advance written approval by the agency for using it.

Further, agencies “shall not subject to grievance procedures or binding arbitration disputes involving subjects such as performance ratings and awards” and “generally should not afford employees more than a thirty day period to demonstrate acceptable performance” before taking disciplinary action if the employee’s performance remains unacceptable. Also included are directives to deny unions “free or discounted use of government property or any other agency resources if such free or discounted use is not generally available for non-agency business by employees when acting on behalf of non-federal organizations.”

While the provisions generally apply only to contracts in ongoing or future negotiations, OPM said, an agency should review whether they can be applied earlier as a matter of management discretion.

Federal unions already have filed numerous complaints at the FLRA alleging that agencies have put policies reflecting those in the orders into effect contrary to existing contracts, and that agencies have not bargained in good faith and have instead declared impasses.’